Opinion
Case No. CR-2-92-009 (1).
October 15, 2007
ORDER
This matter is before the Court on Defendant Charles Chubb's pro se Motion for Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2) and § 1B1.10(c) of the United States Sentencing Guidelines (Doc. 55). The Government has filed a response in opposition to Defendant's Motion (Doc. 56). For the reasons that follow, Defendant's Motion for Reduction of Sentence is DENIED.
A judgment of conviction was entered against Defendant Chubb on April 28, 1992, and was affirmed by the Sixth Circuit on August 19, 1993. See United States v. Chubb, 992 F.2d 1217, 1993 WL 131922 (6th Cir. 1993). Defendant Chubb was sentenced to 327 months imprisonment for conspiracy to distribute and to possess with intent to distribute cocaine base and possession with intent to distribute more than five (5) grams of cocaine base and a consecutive term of imprisonment of 60 months for possession of a firearm in relation to a drug trafficking crime.
Defendant Chubb asserts that his sentence should be reduced based on the Guideline Amendment Effective November 1, 1994, concerning the maximum term of imprisonment authorized for career offenders. ( See Amendment 506 to § 4B1.1 of the United States Sentencing Guidelines). Defendant argues that his base offense level of 34 should be recalculated in accordance with this amendment to a 29 because the Government did not request an enhanced sentence under § 851. Defendant asserts that pursuant to Amendment 506, commentary note 2, the "career offender enhancement cannot exceed level 29 nor 21 U.S.C. § 841(b)(1)(c) prescribed statutory twenty year (2) maximum when 21 U.S.C. § 851 does not apply." (Def.'s Mot. at 2).
When a retroactive amendment to the Sentencing Guidelines reduces the applicable sentencing range, 18 U.S.C. § 3582(c)(2) allows a district court to modify the prisoner's sentence. A district court, however, has the discretion to deny a § 3582(c)(2) motion even if the amendment has lowered the guidelines range. See United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997).
Section 3582(c)(2) provides:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 944(o) . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with the applicable statements issued by the Sentencing Commission.18 U.S.C. § 3582(c)(2). Relevant factors discussed in 18 U.S.C. § 3553(a) include: (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed to reflect the seriousness of the offense and promote respect for the law; (4) whether the sentence provides just punishment for the offense; (5) whether the sentence is an adequate deterrence to criminal conduct; (6) whether the sentence will protect the public from further crimes of defendant; and, (7) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553(a).
The Sentencing Commission has issued a policy statement explaining how a district court should exercise its discretion when considering a § 3582(c)(2) motion. It states:
In determining whether, and to what extent, a reduction in the term of imprisonment is warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the term of imprisonment that it would have imposed had the amendment(s) to the guidelines listed in subsection (c) been in effect at the time the defendant was sentenced. . . .
U.S.S.G. § 1B1.10(b). The Sentencing Commission lists the amendments in subsection (c) from which a § 3582 motion may arise.
In this case, Defendant argues that Amendment 506 should change his offense level to a 29 and ultimately reduce his sentence. The Government argues in opposition that Defendant's offense level was based on the offense for which Defendant was convicted had a maximum of 25 years or more and therefore in accordance with § 4B1.1(B) of the United States Sentencing Guidelines, his offense level was correctly calculated at a 34. The Government argues that nothing in Amendment 506 changes the calculation of the guideline range as applicable to Defendant's sentence in this case. The Court agrees.
Further, even if the Court were to have found Defendant's argument persuasive, it is not required to resentence Defendant. The language of 18 U.S.C. § 3582(c)(2) makes it clear that the authority of the court to alter a sentence is discretionary and not mandatory. Therefore, the Court declines to resentence Defendant Chubb under 18 U.S.C. § 3582(c)(2).
For the reasons stated above, the Court DENIES Defendant Chubb's Motion for Reduction of Sentence pursuant to 18 U.S.C. § 3582.
The Clerk shall remove Document 55 from the Court's pending motions list.